Divorce is the legal dissolution or termination of a marriage. Divorce law is a broad and sometimes complicated area.
No two divorce cases are exactly the same. Some divorces are adversarial and contentious, while others are amiable and cooperative. This all depends on the spouses and their attitudes towards each other and their situation.
However, regardless of the particulars of your case, going through a divorce can be a stressful and uncertain time, especially if you’re not familiar with the legal structure that will be determining your rights and obligations.
A Review of Virginia Divorce Laws
This article will discuss the body of divorce and related law as it exists in the Commonwealth of Virginia, and hopefully provide a quick introduction to Virginia divorce laws.
Note that because each state takes a different approach to divorce law and family law in general, this article is specific to Virginia.
Because of the way that our law has developed over history, two neighboring states can have drastically different divorce laws, so it’s important that you know which state’s law will be applicable in your particular case.
Jurisdiction and Venue for Virginia Divorce
Before discussing the substance of Virginia divorce laws, we need to know whether jurisdiction and venue are proper.
Jurisdiction is the power of a court to hear a particular case, and to declare a remedy. If a court doesn’t have jurisdiction over your divorce case, your case will have to be dismissed. Thus, it’s essential that your divorce case be brought in the right court.
In Virginia, divorce jurisdiction is controlled by Code of Virginia § 20-97. Under this code, at least one spouse must have lived in Virginia for at least six months. Jurisdiction cannot be waived by either party.
By contrast, venue decides which particular court within the Commonwealth should hear your case. For example, should the case be in the Chesterfield County or the Richmond City Circuit Court?
Unlike jurisdiction, venue is not as essential, and it may be waived. Venue is based on:
- Where the parties last cohabitated as husband and wife.
- At option of plaintiff, where the defendant spouse lives.
- If the defendant is out of state, or his whereabouts unknown, where the plaintiff resides.
Two Types of Divorce: Fault-Based and No-Fault Divorces
Once you’ve established that you’re filing your divorce case in the proper jurisdiction and venue, you’ll need to determine what type of divorce is appropriate for you. Virginia basically gives you two options for a divorce.
Fault-based Virginia Divorce
The fault-based option is the traditional conception of divorce, and is generally contested and adversarial. It requires that one of the parties (the plaintiff) establish “grounds” for the divorce. This is to say, that the other spouse (the defendant) has committed some marital misconduct that justifies the divorce. Common reasons for “fault” include adultery, abuse, and abandonment.
No-fault Virginia Divorce
The modern alternative to the traditional fault-based divorce is the no-fault divorce.
With a no-fault divorce, the plaintiff spouse need not establish that the other spouse was at fault. Rather, a no-fault divorce is based on the parties living “separate and apart” for a set length of time.
In the Commonwealth, the Code of Virginia requires that the spouses have lived separate and apart for at least one year before bringing their divorce action. This period can be lowered to six months if there are no minor children involved and the spouses have a property settlement agreement.
Living “separate and apart” means that the spouses are no longer cohabitating (living as if they were married). Though, it requires more than mere physical separation. At least one of the spouses has to have the intention to dissolve the marital relationship upon separation, and this intent must be communicated to the other spouse.
This is because public policy wants the other spouse to have a chance to attempt a reconciliation before terminating the marriage.
Fault Grounds for a Virginia Divorce
In Virginia, no-fault divorce is far and away the most popular way of dissolving a marriage. However, the traditional fault-based approach to divorce is still relevant, as are the various “fault grounds.”
Generally, the modern no-fault divorce grounds are understood as an alternative to, and not a replacement for, the fault-based grounds.
Additionally, the traditional fault grounds are often used as factors in determining an award of spousal support and division of marital property even in a divorce based on the no-fault grounds.
The fault grounds are all provided for by statute, and must be established by evidence.
Adultery means sexual intercourse by either spouse with a party other than their spouse.
Cruelty means bodily harm, or reasonable apprehension of bodily harm that endangers life, limb, or health, and renders marital cohabitation unsafe or improper. Such harm can be physical as well as mental cruelty.
Desertion (or abandonment) requires breaking off of matrimonial cohabitation with the intention to desert and end the marriage on the part of a spouse.
Desertion requires a voluntary separation of one spouse from another, with the intent to not resume cohabitation as a marital unit. There needs to be no justification for the departure, nor consent by the other spouse to the departure.
If both spouses consent to one spouse leaving, that is not desertion.
In this section of the code a number of other fault grounds are included. These cover conviction of a crime, drunkenness, drug addiction, and insanity.
Defenses to a Virginia Fault-Based Divorce
If one of the parties proves that the other party has committed one of the above-described instances of marital misconduct, he or she has established grounds for a fault-based divorce.
Unless, of course, the party accused of the misconduct can assert a defense to the fault-based divorce.
The idea is that only an innocent, guilt-free party should be able to petition for a fault-based divorce. So if both spouses have committed some sort of misconduct that’s responsible for the decline of the marriage, than neither spouse should be entitled to a fault-based divorce.
The divorce defenses are not provided for by statute, but have traditionally been recognized by Virginia courts.
Connivance is the corrupt consent of, or procurement by, the innocent spouse to the wrongful conduct or marital fault of the wrongful spouse.
Such as when the wife wants a quick fault divorce, so she consents to and encourages her husband to commit adultery in order to manufacture a ground for a divorce.
Collusion is fraud on the court by the spouses, due to their presenting false evidence of a marital fault in order to procure a fault-based divorce. An example is the parties pretending that one of the parties committed adultery with a fictional person, and then bring an action for adultery-based divorce.
It’s basically pretending there’s a fault-based ground, when there isn’t.
Condonation and Cohabitation
Condonation and Cohabitation is the conditional forgiveness of a marital fault, with the understanding that the fault will not occur again.
If it does, the defense is nullified, and the fault ground is revived.
Recrimination is based on the idea that only an innocent spouse may obtain a fault-based divorce. If both spouses are guilty of a marital fault, they cannot get a fault-based divorce, because the petitioning spouse must herself have “clean hands.”
Dividing Property in a Virginia Divorce: Equitable Distribution
When a couple divorces, one of the most daunting tasks that they will face is dividing up their property. Determining who gets what is a difficult process under the best of circumstances, and, under the stress of a contested divorce, it can be downright painful.
In the United States, there are two approaches to division of property: the community property and the equitable distribution approaches.
Equitable distribution is used in the vast majority of the states, including Virginia.
Equitable distribution is only relevant when the divorcing couple doesn’t already have a property settlement agreement (PSA) in place that divides up their property.
Agreeing on and entering into a PSA makes everything a lot easier and quicker, and allows the parties to divide their property themselves, without needing a court to step in and do it for them.
The Process of Equitable Distribution
If there’s no PSA, the judge’s job is to classify the property as either marital, separate, or hybrid property. This is based on when the property is acquired. The judge then values the property as of the time of the evidentiary hearing.
Finally, the judge must distribute the property.
In community property states, the distribution is always 50-50.
In equitable distribution states like Virginia, the property can be divided however the court sees as equitable or fair. The judge has the discretion, based on the facts and equities of the particular case, to divide the property in a way that is most equitable and just. (This can be 50-50, 60-40 or even 90-10, etc.)
Virginia’s equitable distribution statute is found in the Code of Virginia § 20-107.3, which lays out factors that the court must consider when classifying and distributing marital property.
Only property that is classified as marital is subject to equitable distribution, while property classified as separate property is not distributed, but stays with the respective spouse.
Determining Whether Property is Marital or Separate
Generally, marital property is defined to include all property acquired subsequent to or during the marriage. Property acquired before the marriage is separate.
In all states, pensions and retirement plans are marital property, even though the plan may be titled in the name of only one of the parties. The non-owner spouse can ask for such plans to be valued and distributed (in the absence of a contract agreement that provides otherwise).
Separate property is generally defined to include:
- Property acquired by gift, bequest, devise, or descent;
- Property acquired in exchange for separate property;
- The increase in value (appreciation) of separate property;
- Property excluded by a valid agreement between the parties; and
- Property acquired by a spouse after a decree of legal separation.
Spousal Support and Relevant Factors
In Virginia, upon divorce a spouse is not automatically entitled to spousal support (also called alimony), especially if equitable distribution of the couple’s property can adequately provide for a non-wage earning spouse.
Code of Virginia § 20-107.1 articulates the factors for determining spousal support. Fault is included as a factor that the court may consider in deciding whether and how much spousal support should be awarded.
If a spouse has committed adultery, for example, that spouse shall not get support, unless such a denial of support would produce a “manifest injustice” for a needy spouse, as shown by “clear and convincing evidence.”
Child Support and Relevant Factors
Virginia divorce laws use a model of child support that takes into account the incomes of both the payor and payee parents. The support obligation is calculated by combining the parents’ income, along with estimated child-rearing expenses.
The parents contribute to this obligation on a pro-rata basis based on their respective incomes. This approach is based on the idea that the child should enjoy the same level of support from each parent that he would have had the parents not separated.
Code of Virginia § 20-108.2 contains Virginia’s child support guidelines.
In order to make sure that the children of divorced parents are adequately provided for, and treated equally, the guidelines provide a formula for calculating monthly support payments to the custodial parent.
The guidelines are essentially a chart, with one axis representing the parents’ income, and the other axis showing the number of children to be supported. Where these values intersect on the grid produces the presumptive monthly support amount.
Judges may deviate from this presumptive amount, but they must have a good reason for doing so, and must express this reason in writing.
Child Custody and Relevant Factors
The modern standard for determining child custody is what would be “in the best interest of the child.” Some states reflect this standard by using statutes that speak only in general terms about the “best interest.”
Other states, like Virginia, use statutes that set out a long list of factors that the courts must consider
Code of Virginia § 20-124.3 sets out the factors that a court must consider when determining how to award custody of a minor child (assuming that the parents have not themselves entered into an agreement addressing custody and visitation, which is of course preferable).
These statutory factors include:
- The wishes of the child’s parents;
- The reasonable preference of the child, if the child is of sufficient age to use discretion;
- The intimacy of the relationship between each parent and the child;
- The child’s adjustment to home, school, and community;
- The length of time the child has lived in a stable environment;
- The performance as a family unit of the proposed custodial home;
- The mental and physical health of the individuals involved;
- The ability of the parties to give child care and love; and
- The child’s cultural background.
Virginia divorce laws can be confusing and difficult at times. However, these laws have been developed by the courts and the legislature over many years, as part of an ongoing effort to ensure fairness and equity for all parties involved in what is inherently a stressful and trying situation.
Because both the divorce laws and process are complicated, it is a good idea discuss your Virginia divorce questions with an experienced family law attorney who specializes in Virginia family law.